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If the jury returns a verdict against your client, it always makes sense to request that the jury be polled. But what does it mean to "poll the jury"?

After the jury has returned its verdict, but before it has been retired, any party has an absolute right to request that the jury be polled. Upon this request, the judge or court clerk asks each juror individually if he or she agrees with the verdict. The judge has discretion about how to word the question, but the usual form is to ask: "Was this then and is this now your verdict?"

If a juror does not affirm the verdict by answering yes, you should ask the judge to ask follow-up questions. You should also make a record if any of the jurors hesitate in answering the question, e.g., "Your Honor, if I may? I would like the record to reflect that Juror #2 hesitated for ten seconds before answering, which indicated some reluctance on her part to affirm the verdict. I request that your Honor question Juror #2 about the reason for her hesitation."

Failure to make a complete record waives the issue on appeal. If any juror disavows the verdict, the judge can either discharge the jury or instruct it to return to its deliberations; in most cases, the judge will do the latter. See, e.g., People v. Smith, 649 N.E.2d 71 (2d Dist. 1995).

This short summary of the polling process is drawn from numerous cases. A typical case that explains the process is People v. Gunn, 604 N.E.2d 1044 (3d Dist. 1992).

By making use of learned treatises, you can add to your stable of experts highly-credentialed writers who will testify for you for free. As Henry G. Miller puts it in his book On Trial: Lessons from a Lifetime in the Courtroom, "You don't even have to take anybody to dinner."

Miller continues:

In some jurisdictions, the expert can try to frustrate the cross-examiner by refusing to concede the treatise is authoritative . . . Trot out the same ten books and the same meaningful looks.

"You don't admit the Einstein is an expert on the theory of relativity?"

"Did you know that Professor Gallen is Chair of the Department of Solar System Medicine at Harvard--Yale--Johns Hopkins--Mayo Clinic? You don't admit he's an authority?"

"You admit that you have Professor Galileo's book in your library? Isn't he an authority?"

"You admit you were taught by Isaac Newton at Princeton and you still deny he's an authority?"

Has any lawyer ever composed a weblog about an ongoing trial, updating the trial’s progress with daily posts? I’m aware of only one example, which is happening right now in the case of US v. Oracle. The blog’s author, Gary Reback, who is watching the trial on behalf of Peoplesoft, started the blog because he wasn’t satisfied with the newspaper reporting about the trial.

Web sites dedicated to a specific trial are ushering in a new era of client service, said Denise M. Howell, a Web log booster and intellectual property litigator who is of counsel to the Los Angeles office of Reed Smith.

"Not only is it critical to know who will try your case," Howell said. "It's important to consider who will 'blog' it."

It's an interesting article, and provides further evidence that blogs may be coming to a trial near you. (Thanks to The Blawg Channel for the link.)

Over the weekend, I caught part of a "CNN Presents" program about John Edwards, which contained a segment on Edwards' career as a personal injury lawyer.

By now, everyone has heard about Edwards' successes, but the program included some interviews with lawyers and judges who'd seen Edwards in action. Here's how one judge summed up an Edwards closing argument: "It was like he was leaning over the fence, talking to his neighbor."

It seemed to me like a style all lawyers should emulate, so I decided to pass it on here. For more advice about how to speak to juries, see my earlier post titled "Gerry Spence on Common Speech."

I'm doing some research today on Illinois post-judgment motions and deadlines for appeal, which I'm going to post here as a way of bookmarking the information for myself. As with all my posts about rules, deadlines, and substantive and procedural law, make sure to confirm any information you read here for yourself. Not only is this just common sense, but your boss or client won't understand when you defend your position with the comment that you "read it on a weblog."

So then, on to the deadlines for appeal. According to Rule 303(a)(1), if there is no timely post-trial motion filed, "the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." When a timely post-trial motion is filed, the notice of appeal must be filed "within 30 days after the entry of the order disposing of the last pending post-judgment motion."

The procedures for filing post-judgment motions following either a jury or non-jury trial is fraught with opportunities for error, so be sure to study the rules well. Although you hopefully won't need it, Rule 303(d) explains the circumstances under which the court might grant an untimely leave to appeal.

Law professors with past experience as practicing lawyers (which would include most of them, I guess) might know quite a bit about depositions, as is demonstrated by an easy-to-read 9-page guide by Professor Tanford of the Indiana School Law. It's simply titled "Depositions" and tells you what you'll need to know to take a deposition, as well as to defend one. It even includes a list of typical objections.

Though it's based on Indiana law, the tips provided by Professor Tanford are applicable just about anywhere.

Illinois Supreme Court Rule 206(h) allows for telephone depositions by agreement or upon order of the court. The various rules for telephone depositions listed in Rule 206(h) can be amended or waived pursuant to Rule 201(i). Generally, the exhibits that any party plans to use should be exchanged in advance of the deposition, and the court reporter should set up at the witness's location.

So here's the tip: Telephone depositions make sense from time to time, but in most cases, you won't want to be the lawyer on the telephone. If your opponent wants to attend a deposition by telephone, by all means allow him to do so. Meanwhile, you should appear in person. You'll have an obvious advantage over the other lawyer, who won't be able to exchange pleasantries with the witness in person and who will be fumbling with the exhibits when the deposition starts.

As a lawyer who's been in both situations, take it from me--it's better to be the lawyer who's present at the deposition in person, rather than the one who appears by telephone.

George has continued his musings in his post "Discourse on summary judgment motions Part II (having the last word: the reply brief)." Here's a preview--

Good summary judgment replies are arguably harder and more important than the original motions themselves. . . . Here I offer some practical how-to suggestions for preparing replies. Much of this is equally applicable to appellate replies.

It's a good post that will make your job of writing reply briefs much easier.

After witnesses are cross-examined at trial, the lawyer who offered the witness is allowed a chance to conduct "redirect" examination. During redirect, the lawyer can ask the witness questions that will allow him to explain any troublesome answers he gave during cross-examination.

As in most jurisdictions, the scope of redirect in Illinois is limited. The lawyer conducting redirect is not allowed to ask questions about issues that were not covered in cross-examination. In fact, the scope is even more limited than that: the lawyer may only ask questions about new matters that were covered in cross-examination. The witness, in other words, must do more than simply repeat answers he already gave during direct examination.

The judge conducting the trial has discretion to vary these rules and can allow a lawyer to ask new questions on redirect that the lawyer forgot to bring out on direct. One author suggests that a judge in this situation should forbid the questions, but allow the lawyer to recall the witness after the examination has been completed for the purposes of going into the new matters. See Hunter, Trial Handbook for Illinois Lawyers (7th ed.), at Section 31.1. According to Hunter, such a procedure "increases the orderliness of the proceeding by adherence to the rule that the examination is limited to the scope of the preceding examination, without restricting counsel in his right to bring out relevant testimony."